If one were to describe corruption, it can best be described in the
simplest way as ‘use of a public office, for a private gain’! Quite sadly,
since independence, no serious effort has ever been made by anyone to
tackle the menace of corruption in our country, which has been by now
virtually institutionalized all over the country.

The report prepared by Berlin (Germany) based NGO, ‘Transparency
International’ puts India at 69th place in 1999, at 72nd place in 2002 and
at 83rd place in 2004 in terms of Corruption Perception Index amongst 176
members of the United Nations. This dipping of India’s rating with the
passage of time is quite alarming for the country.

On the other hand countries like Singapore, Australia, Denmark, Norway,
Sweden, etc. which have phenomenal per capita income or the GDP growth
rate, if compared with India are perceived to be the least corrupt
countries in the world, thereby giving a credence to a mathematical theory
that the corruption is disproportionate to progress. Lesser the
corruption, more progress and higher the corruption, lesser the progress!

According to N.C. Vittal, the former Central Vigilance Commission chief,
the enormity of corruption in India is so high that the black money which
accounts 40% of our Gross Domestic Product (GDP) is sustaining life blood
of corruption in our country.

The CVC itself came into existence in 1964 upon the recommendation of
Santhanam Committee which was appointed in the wake of Mundhra Scandal
during the Nehruvian era ! Till Apex Court delivered its verdict in Hawala
Case, CVC was merely playing as an advisory role. But this verdict
conferred upon a statutory status to the CVC and it also derived the
powers of a supervisory role over the functioning of the Central Bureau of
Investigation & Directorate of Enforcement as well, which are entrusted
with the investigation of large number of cases involving financial
irregularities.

In his excellent paper captioned ‘Corruption & the Rule of Law’, Mr. N.C.
Vittal says it is our electoral process, which is mainly responsible for
starting a vicious cycle of corruption in our country. He exemplifies his
proposition theory by saying that the political corruption leads to the
bureaucratic corruption, which in turn leads to business corruption and
finally culminate into the criminalization of politics’.

Our defective electioneering system is such that the dons like Shahabuddin,
Vikas @ Pappu Yadav from Bihar and Rajju Bhayya from UP could easily get
elected with thumping majority while being in jail as under trial
prisoners. Thanks to both money and muscle powers which they have amassed
over the years, due the political patronage which they have enjoyed in
their respective states and perhaps in Delhi as well.

Although the findings of the Vora Committee appointed during the tenure of
late P.V. Narasimha Rao as the prime minister to find out politicians –
criminal nexus submitted its report almost a decade ago, no concrete
initiative has been taken by the successive ministries at Center to seek
its implementation. Even Lal Krishna Advani, who was on the forefront in
demanding the Vora committee findings, more particularly its annexure
enlisting the list of criminals enjoying the political patronage be made
public, when Inder Kumar Gujral and Deve Gowda were PM, hardly took any
firm step in acting upon the Vora Committee’s recommendations, when BJP
led NDA government came into power.

As a matter of fact, the BJP literally invited the wrath of the media when
its then general secretary Pramod Mahajan roped in UP’s most infamous don
D.P. Yadav in early 2004 prior to fourteenth Parliamentary poll. Finally
outburst of the BJP in media finally led to dislodging of D.P. Yadav whose
tenure lasted for barely four days in a party, which is often trumpeted
for moralistic values and principles.

The independence scenario indicates that the political parties over the
years are benevolent while fielding in mafia dons in various kinds of
elections due their ability to win and also the amount of funds they can
infuse into the party. In return, the political parties offer them both
patronage and protection from not being harassed, if not of being
convicted.

According to the survey published by India Today couple of years ago, out
of 5,539 candidates who contested 2002 Uttar Pradesh assembly elections,
965 were having serious criminal records. It further mentioned that 39
members of 12th Parliament constituted after 1996 general election had
were implicated in serious criminal offences like murder or dacoit, or
rape cases. This figure had further swollen to 72, after 1999
Parliamentary elections.

The principle reason for criminals entering politics is for deriving a
sphere of influence which would ultimately help in dropping and / or
delaying the criminal cases which they are facing. These days, if any
criminal is finding it difficult to be in political fray, then his close
relatives are encouraged to don the political mantle. Arun Gawali’s
daughter, who would be contesting the Mumbai’s municipal corporation
election from Agripada municipal ward, at the age of twenty six is having
assets worth Rs. 35 lakhs! Has anyone including our over enthusiastic
media has a courage to question her source of income ? Certainly not !

One hardly recollects any single step by the central government or even a
recommendation made by any political party having national level presence,
whereby a serious effort or thought has been made or given by it to
eradicate the evil of corruption which has now reached to frightening
proportions in all spheres of our life.

Shashi Tharoor, an Indian diplomat on UN mission, in his classic book
‘From Midnight to the Millennium’ (Arcade Publishers, New York) suggests
that “the permit-license-quota Raj” a concept fostered during Jawaharlal
Nehru’s period gave to birth to the concept of bureaucratic corruption in
India and goes on to add that rot was more set in when Indira Gandhi took
over the premiership of the country. What happened during Rajiv Gandhi’s
tenure when Bofors scandal rocked the nation is now a part of the history.

However, we have amongst us Rajiv Shukla , journalist turned Congress MP
from Rajya Sabha who has wisdom in questioning the spending of Rs. 200
crores by the CBI for investigating Bofors scam which was barely to the
tune of Rs. 65 crores! All this manifests how serious our political
parties are in tackling the corruption.

The blame for today’s scenario is squarely placed on the politicians who
were once likened to a cancer by India’s election commissioner J.M.
Lyngdoh. Their inherent corrupt mind sent, coupled with their
opportunistic attitude, complete absence of moral restraint, least regard
for the rule of law are regarded as mainly responsible for the sordid
state of affairs of our country.

One hardly recollects any famous (or infamous?) case or trial, where a
politician has been sent behind the bars on the corruption charges ! Till
this date, it had become virtually impossible in bringing any heavy weight
politicians to the book without delay. Thanks to the kind of immunity
which they have enjoyed by virtue of Section 19 of The Prevention of
Corruption Act – 1988 from being prosecuted in absence of government
sanction.

The prosecutions of former TN chief minister J. Jayalalitha, of former
Assam Chief Minister Prafulla Kumar Mohanta and that of Kerala’s former
chief minister K. Karunakaran took several years to being as the sanction
was not coming from those persons who were representing gubernatorial
positions in these respective states, as they themselves were politicians
once upon the time.

The website of CVC once indicated that as many as thirty-five matters were
awaiting prosecution sanction against central government employees by
December 2005. This is sufficient to manifest lack of seriousness on the
part of the incumbent government in tackling corruption.

However, in an epoch making judgments of its kind, country’s Apex Court
has now paved the way for both the expeditious and effective prosecution
of both public servants and also the politicians who were until other day,
enjoying a sort of an immunity for being put on trial on rampant
corruption charges.

While dismissing a group of petitions filed by former Punjab Chief
Minister Prakash Singh Badal, Union Railway Minister Lallo Prasad Yadav,
his wife & ex-Bihar CM Rabri Devi, former Kerala Chief Minister K.
Karunakaran and former Punjab deputy chief minister Rajinderkaur Bhattal
the division bench of Supreme Court consisting of Arijit Pasayat & S.H.
Kapadia, has held that “the principle of immunity protects all acts of
public servants has to perform in the exercise of in exercise of the
functions of the government. However, where a criminal act is performed
under the color of authority, but which in reality is for the public
servant’s own benefit or pleasure, such acts shall not be protected under
the doctrine of state immunity’’.

The kind of protection which the bureaucrats and politicians have enjoyed
over the years by virtue of Section 19 of The Prevention of Corruption Act
– 1988, of ‘prior prosecution sanction’ now stands blown off with this
landmark judgment. This in built provision was made to save the public
servants from mischievous, bogus and / or vindictive prosecution and the
kind of harassment which they undergo in the process. .

As the prosecution sanction was not forthcoming, the public servants
virtually enjoyed immunity from being tried. The SC ruling has now cleared
a huge obstacle which had literally forestalled the prosecution of public
servants. The manner in which the attorney general of the country, Milon
Bannerji virtually took cudgels on behalf of BSP leader and former UP
Chief minister Mayawati over Rs. 75 crore scam in Taj Corridor project
manifest how the political leaders of alliance partners were being
protected by the incumbent government in view of the political
implications of the matter.

Until the Supreme Court delivered a verdict in Hawala case confusion had
prevailed whether the term or definition of ‘public servant’ was confined
to bureaucrats alone, or it could also encompass politicians? But with the
passing of the judgment in Hawala case on 18th December, 1997, the SC has
clarified that “the political leaders as the members of Parliament, and
legislatures and holding office like Ministers are also covered in the
definition of public servant.

Our Apex Court undoubtedly deserves kudos for clarifying that the
protection enjoyed by the public servants under section 197 of Cr.P.C. can
not be invoked by the politicians and / or public servants, as the act of
‘indulging or abetting corruption’ can not be construed as a part of
official duties. However, this ruling has also kicked off a debate in the
legal fraternity as to whether Section 197 of Cr.P.C. now stands redundant
!

The latest ruling would definitely facilitate expeditious disposal of
trials, in addition to transparent investigation of the matters,
especially involving disproportionate assets!

However, all depends upon the will of the people as well, as the society
too has to come out of the shell in tackling such serious issues, which
have huge bearing on the progress of nation. Unfortunately, the law
abiding citizens in this country have lost their faith in the politicians
as a result of which participation of the people in the governance has
virtually not taken place.

The verdict delivered by division bench of SC has sanctity of law as
contemplated under Article 143 of the Constitution of India and it can be
set aside only if overruled by a constitutional bench. However, ever since
the Congress led UPA government has come into power an attempt is being
made to rescind or set aside the judicial pronouncements by way passing a
bill in Parliament. The sealing drive ordered by the Supreme Court to
Municipal Corporation of Delhi is the case in the point.

The controversy erupted in the wake of sealing of commercial
establishments and shops operating from the residential localities for
years together in Delhi is one of the biggest corruption scandals of its
involving the politicians and the bureaucrat in country’s national
capital.

Unless, the middle class people and also the intellectuals join hands and
come out from the shell, nothing can happen in this country, as the
politicians are thriving over their years as the people from these classes
do not turn out for the voting !

“Quo Vadis Indian democracy” ?

(Author is a practicing advocate from Bombay High Court)

Comments to this article can be sent at : ganesh_sovani@rediffmail.com

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